If an individual instructs a covered health care provider that he does not want the provider to discuss his medical conditions or treatment with his family members, can the covered entity share such information with family members after the individual has died?
Generally, no. The Privacy Rule permits a covered entity to disclose protected health information about a decedent to a family member, or other person who was involved in the decedent’s health care or payment for care prior to the decedent’s death, only if doing so is not inconsistent with any prior expressed preference of the deceased individual that is known to the covered entity. However, a family member that is a personal representative of the decedent (e.g., an executor or administrator of the decedent’s estate) is to be treated as the individual for purposes of the Privacy Rule with respect to protected health information relevant to the representation. In these cases, a covered health care provider may disclose relevant protected health information about the decedent to the family member, and the family member retains the right to receive a copy of the relevant information in the decedent’s medical record, without regard to the decedent’s prior objection.